Filed: May 16, 2008
Latest Update: Feb. 12, 2020
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4532 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GEORGE KEITH MARTIN, Defendant - Appellant. No. 06-4603 UNITED STATES OF AMERICA, Plaintiff - Appellant, versus GEORGE KEITH MARTIN, Defendant - Appellee. Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (1:05-cr-00021-IMK) Argued: October 31, 2007 Decided: M
Summary: ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4532 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus GEORGE KEITH MARTIN, Defendant - Appellant. No. 06-4603 UNITED STATES OF AMERICA, Plaintiff - Appellant, versus GEORGE KEITH MARTIN, Defendant - Appellee. Appeals from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge. (1:05-cr-00021-IMK) Argued: October 31, 2007 Decided: Ma..
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ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4532
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE KEITH MARTIN,
Defendant - Appellant.
No. 06-4603
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
GEORGE KEITH MARTIN,
Defendant - Appellee.
Appeals from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:05-cr-00021-IMK)
Argued: October 31, 2007 Decided: May 16, 2008
Before TRAXLER and GREGORY, Circuit Judges, and Jerome B. FRIEDMAN,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per
curium opinion.
ARGUED: James Bryan Zimarowski, Morgantown, West Virginia, for
George Keith Martin. Zelda Elizabeth Wesley, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,
West Virginia, for the United States. ON BRIEF: Sharon L. Potter,
United States Attorney, Wheeling, West Virginia, for the United
States. ON BRIEF ON REHEARING: Matthew A. Victor, VICTOR VICTOR &
HELGOE, LLP, Charleston, West Virginia, for George Keith Martin.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
George Keith Martin, the defendant, appeals his convictions by
a jury for conspiracy to possess with intent to distribute and to
distribute in excess of fifty grams of cocaine base, also known as
“crack” cocaine, in violation of 21 U.S.C. § 846 (Count 1), aiding
and abetting the distribution of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count 2),
distribution of cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) (Count 4), and use of a firearm during and
in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(I) (Count 5). In his appeal, Martin claims there
was insufficient evidence to support his conviction, the district
court erred in not including his proposed jury instruction on
weaker and less satisfactory evidence in its charge to the jury,
and the district court erred in allowing the government to
improperly bolster their case through the testimony of Sergeant
Purkey and admission of the videotape. We vacate Martin’s § 924(c)
conviction but affirm his other convictions.
The government cross-appeals Martin’s sentence, claiming the
district court erred in holding that the court was unable, pursuant
to United States v. Milam, 443 F.3d 382 (4th Cir. 2006), and United
States v. Revels,
455 F.3d 448 (4th Cir. 2006), to make any
additional factual findings that had not been determined by the
jury nor admitted by the defendant. Because we vacate Martin’s §
3
924 conviction, we also vacate his sentence and remand to the
district court for resentencing. We nevertheless address the
sentencing issue cross-appealed by the government in order to
provide guidance to the district court on remand.
I.
Martin argues the lack of physical or forensic evidence
presented by the government and the questionable character of some
of the government’s witnesses warrant a finding that there was
insufficient evidence to support the jury’s verdict.
In determining whether the government presented sufficient
evidence at trial, the reviewing court examines the evidence in the
light most favorable to the government to determine whether any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 318-19 (1979); United States v. Burgos,
94 F.3d 849, 862
(4th Cir. 1996) (en banc). The reviewing court must be aware that
“‘[t]he jury, not the reviewing court, weighs the credibility of
the evidence and resolves any conflicts in the evidence presented,
and if the evidence supports different, reasonable interpretations,
the jury decides which interpretation to believe.’” United States
v. Hagbegger,
370 F.3d 441, 444 (4th Cir. 2004)(quoting United
States v. Murphy,
35 F.3d 143, 148 (4th Cir. 1994)). This court
has repeatedly held that the uncorroborated testimony of a single
4
witness at trial may be sufficient to support the jury’s verdict.
See, e.g., United States v. Wilson, 115 F.3d 1185, 1190 & n.9 (4th
Cir. 1997).
We find that, in viewing the evidence in the light most
favorable to the government, there was sufficient evidence to
support the jury’s verdict on Counts 1, 2, and 4. See United
States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999) (providing
elements of 21 U.S.C. § 841(a)); United States v. Wilson,
135 F.3d
291, 306 (4th Cir 1998)(providing elements of conspiracy with
intent to distribute and to distribute crack cocaine).
The same may not be said of Martin’s § 924(c) conviction
(Count 5). Martin contends that the conduct underlying that
conviction was his trading a quantity of cocaine base for a
firearm, and that Watson v. United States, 128 S. Ct. 579 (2007),
decided after sentence was imposed here, establishes that such
conduct does not constitute a § 924(c) violation. Because this
argument is raised for the first time on appeal, we review for
plain error only. See Fed. R. Crim P. 52(b); United States v.
Olano,
507 U.S. 725, 732-35 (1993). In order to prevail under
Olano, Martin must demonstrate that an error occurred, that the
error was plain, and that it affected his substantial rights. See
Olano, 507 U.S. at 732. Even if he makes that showing, we would
not exercise our discretion to notice the error unless the error
“seriously affected the fairness, integrity, or public reputation
5
of judicial proceedings.” United States v. Higgs, 353 F.3d 281,
324 (4th Cir. 2003). Here, the government correctly concedes that
Martin has made the necessary showing and that we should exercise
our discretion to notice the error. We therefore vacate Martin’s
§ 924(c) conviction.
II.
Martin argues the district court erred in not including his
proposed jury instruction on weaker and less satisfactory evidence
in its charge to the jury. Martin argues this jury instruction was
necessary based upon the lack of physical and forensic evidence
linking him to the drug distributions and the inability of the
district court to define reasonable doubt. We disagree.
This court considers de novo whether a district court has
properly instructed a jury on the statutory elements of an offense,
see United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996), but
reviews for abuse of discretion the district court’s decision of
whether to give a jury instruction and the content of the
instruction. See United States v. Abbas,
74 F.3d 506, 513 (4th
Cir. 1996). The court’s denial of a proposed jury instruction
constitutes reversible error only if the proposed jury instruction
“(1) was correct; (2) was not substantially covered by the court’s
charge to the jury; and (3) dealt with some point in the trial so
important, that failure to give the requested instruction seriously
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impaired the defendant’s ability to conduct his defense.” United
States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995).
We find that the district court did not err in refusing to
include Martin’s proposed jury instruction because it is not a
correct statement of law. We have consistently held that the
district court, when instructing the jury, “need not, and in fact
should not, define the term ‘reasonable doubt’ even upon request.”
United States v. Williams, 152 F.3d 294, 298 (4th Cir. 1998). The
district court properly instructed the jury on reasonable doubt and
their duty to interpret the evidence presented at trial and
determine its weight. Additionally, Martin had the opportunity to
argue the lack of physical or forensic evidence to the jury in his
closing statement, and therefore, the failure to give this
instruction did not impair his defense.
III.
Martin argues the district court erred in allowing the
government to improperly bolster the testimony of their other
witnesses through Sergeant Purkey’s testimony and the admission of
the video detailing a controlled buy. We disagree.
This court reviews whether the district court’s decision to
admit evidence was an abuse of discretion. See United States v.
Clark, 986 F.2d 65, 68 (4th Cir. 1993). The admission of evidence
“will not be turned over on appeal unless the court’s decision is
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shown to be arbitrary or irrational.” United States v. Bailey, 990
F.2d 119, 122 (4th Cir. 1993).
Martin’s objection to the videotape, as only depicting a
portion of the controlled buy in which he is absent, goes to its
weight, not its admissibility. The videotape corroborated the
testimony of other witnesses, and we find its admission was not
arbitrary or irrational. Sgt. Purkey’s testimony on the types of
drugs, the typical drug weights found in Harrison County, and the
drug weights associated with the other witnesses’ testimony likely
aided the jury in ascertaining the truth. Additionally, the
district court properly provided limiting instructions and gave the
defendant the opportunity to voir dire Sgt. Purkey and conduct
extensive cross examination of his testimony. We find, therefore,
the district court did not commit reversible error in admitting
Sgt. Purkey’s testimony.
IV.
The government appeals Martin’s sentence, arguing the district
court improperly concluded, based upon United States v. Milam, 443
F.3d 382 (4th Cir. 2006), and United States v. Revels,
455 F.3d 448
(4th Cir. 2006), that it could not enhance the defendant’s sentence
based upon facts not found by the jury nor admitted by the
defendant. We agree.
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Martin faced a maximum possible sentence of life imprisonment
for Count 1, conspiracy to possess with intent to distribute and to
distribute in excess of 50 grams of cocaine base. See 21 U.S.C. §§
846 and 841(b)(1)(A). The jury, in its verdict, found no specific
relevant drug weight beyond the fifty grams or more of cocaine base
in Count 1. The presentence report attributed 11.23 kilograms of
cocaine base to the defendant and added sentencing enhancements for
his managerial role in the offense, pursuant to United States
Sentencing Guidelines § 3B1.1, and obstruction of justice, pursuant
to United States Sentencing Guidelines § 3C1.1. The presentence
report determined Martin’s total offense level to be 43 and his
criminal history category to be IV, resulting in a guideline range
of life imprisonment with an additional five years, to run
consecutively, for Count 5. The district court concluded, based
upon Milam and Revels, that it could only rely upon the factual
findings made by the jury.* The court, therefore, attributed only
50 grams of crack cocaine to the defendant and did not include the
additional sentencing enhancements, resulting in a new offense
level of 32. The district court sentenced Martin to 210 months for
Counts 1, 2, and 4 and 60 months for Count 5, to be served
consecutively to the other Counts.
*
We note that the district court acknowledged during Martin’s
sentencing that it may have misinterpreted the law and, but for its
misunderstanding, the court would have adopted the findings in the
Presentence Report and would have found a life sentence reasonable
and justified.
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The federal sentencing guidelines are now advisory following
United States v. Booker, 543 U.S. 220 (2005). When calculating the
guideline range sentencing courts may make factual determinations
regarding sentencing enhancements by a preponderance of the
evidence. United States v. Morris,
429 F.3d 65, 72 (4th Cir. 2005)
(“‘Booker does not in the end move any decision from judge to jury,
or change the burden of persuasion.’”) (citation omitted). Both
Milam and Revels involved pre-Booker dispositions and neither of
these decisions, as noted in Revels, affect the post-Booker
sentencing court’s calculation of a defendant’s advisory guideline
range.
Revels, 455 F.3d at 451 n.2. The district court,
therefore, erred in concluding that it was unable to make
additional factual findings on sentencing enhancements for the
amount of drugs, the defendant’s role in the offense, and whether
the defendant obstructed justice.
Martin argues the district court’s misinterpretation of Milam
and Revels should not result in a new sentence because his sentence
is still reasonable. The reviewing court examines a post-Booker
sentence for unreasonableness. Booker, 543 U.S. at 264. A
sentence may be unreasonable for both substantive and procedural
reasons. United States v. Moreland,
437 F.3d 424, 434 (4th Cir.
2006) (stating that a substantially unreasonably sentence occurs
when “the court relies on an improper factor or rejects policies
articulated by Congress or the Sentencing Commission” and a
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procedurally unreasonable sentence occurs when the district court
“provides an inadequate statement of reasons or fails to make a
necessary factual finding”). The district court’s
misinterpretation of the law warrants a finding that Martin’s
sentence was unreasonable.
Accordingly, we vacate Martin’s § 924(c) conviction, affirm
his other convictions, vacate his sentence, and remand for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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